Oral arguments are scheduled for February 1 at the US Court of Appeals for the District of Columbia Circuit, which will rule on a challenge to FCC Chairman Ajit Pai's repeal of net neutrality rules. The court confirmed this week on its website that its schedule "will not be affected, at least initially, by the partial shutdown of the federal government" that began on December 22, 2018. The court has enough funding to operate for now and said that "[o]ral arguments on the calendar for the month of January and February will go on as scheduled."

But the FCC, which is partially shut down, filed a motion yesterday asking the court to postpone oral arguments in the net neutrality case.

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," the FCC said in its filing. "However, due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument."

The FCC cited guidance from the Department of Justice, which "instructs government attorneys to request that active [civil] cases be postponed until funding is available." But the FCC said its attorneys will prepare for the oral arguments if they must take place on February 1.

"The Commission respectfully requests prompt resolution of its motion so that it may fully prepare for argument in the event that the Court intends to hear the argument as scheduled on February 1, 2019," the FCC filing said.

Broadband industry trade groups that pushed for the net neutrality repeal did not oppose the FCC's motion to delay oral arguments.

Case too important for delay, trade group says

The FCC motion for a delay was opposed by Incompas, an industry group that is one of the petitioners seeking reversal of the FCC's repeal of net neutrality rules.

"[T]here is a need for a timely decision in this important matter," Incompas wrote in a court filing today. "Due to the FCC's misguided and unlawful repeal of the network neutrality rules, consumers are at risk of substantial harm from Internet Service Providers ('ISPs'), which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules. The repeal of the rules also threatens edge providers, as they are facing the risk of blocking, throttling, and other practices by ISPs, which may have services competing with edge provider services."

Incompas pointed to legal precedents from a previous government shutdown in which court cases continued. During the October 2013 shutdown that lasted 17 days, "the court received Government motions to stay oral argument in at least sixteen cases," the Incompas filing said. "Every one of these motions was denied; and every time, the Government then participated in oral argument."

On January 4 of this year, the Federal Aviation Administration requested a delay in oral arguments for another DC Circuit court case. But the DC Circuit court denied the request, and oral arguments were then held on January 11.

"This Court has continued to deny motions to stay oral argument during this shutdown," Incompas noted.

Incompas represents smaller broadband providers such as RCN and Google Fiber, streaming providers such as Netflix and Amazon, and websites such as Facebook and Twitter.

"Over 80 percent of Americans oppose the FCC action to end strong net neutrality policies that gave rise to the streaming revolution and brought stronger open Internet freedoms," Incompas General Counsel Angie Kronenberg said in a statement. "It's time for net neutrality to have its day in court, so consumers, streamers and internet dreamers can have the threat of ISP gatekeeper fees, paid prioritization and blocking behavior removed from the equation."